McCormack v. Herzog, 2015 WL 3429396 (9 C.A.)

The 9th Circuit allegedly selects its panels randomly, but challenges by critics to its methodology have gone unanswered;  McCormack v. Herzog was written by a judge whose decision could have been predicted the moment he got the assignment.  His decisions on civil rights, prisoner rights and defendant’s rights are routinely foregone conclusions.  An abortion case, like this one, was already decided regardless of the issue.  Of course he is not the only judge with a one track mind, but on abortion-unquestionable.

For some reason the plaintiff, who self induced an abortion, filed her complaint against  the prosecuting attorney rather than the state of Idaho. Very unusual.

Idaho had previously lost an earlier abortion case with the same plaintiff, and the prospect of the 9th Circuit panel changing its mind in this case a foregone conclusion; McCormack v. Heidman, 694 F.3d 1004 (2012).  That case was also written by the same predictable judge as well as the instant case of McCormack v. Herzog.

There is little point in summarizing the facts.  The case rests on a judicial interpretation of Idaho state law restricting abortion under certain statutory conditions, and the 9th Circuit panel adopted the usual “unreasonable burden on women” routine to vitiate the statute. The 9th Circuit had also previously found an Arizona statute imposing limitations on abortion unenforceable on the same grounds.  Strangely, another predictable judge wrote that opinion; Isaacson v. Horne, 716 F.3d 1213 (9th Cir).

The 9th Circuit will prevent enforcement of any abortion statute written by a state legislature.  Federal court review of legislation written by sovereign states is common-and wrong. Roe v. Wade, one of the worst decisions ever written, barren of precedent, inventing a 14th Amendment issue, usurping the right of every state in the country to enact its own laws.

42 U.S.C. 1983, the statute invoked in this case, is increasingly the formula used to allege violation of civil rights. The statute enables the 9th Circuit and other federal courts to rule on state cases alleging violations of the Fourth and Fifth Amendment; Due Process; Equal Protection; Eighth Amendment; & First Amendment.  Given the unlimited judicial interpretation of Constitutional law, particularly in the 9th Circuit, the boundless variety of decisions in these cases emerged.  The “liberty” interest of the 14th Amendment invented by the Supreme Court is intangible, subjective and abstract. and The decision on abortion should be determined by voters in a democracy instead of three tenured federal judges imposing personal policy decisions. As in this case.

Pensinger v. Chappell (Warden) 2015 WL 3461989

Jurors in state court must now accept jurors only if they are lawyers, judges, justices, academics,  law professors, rhetoricians, or linguistic experts in order to understand jury instructions.

The 9th Circuit has reversed the penalty in this death penalty case (as usual) in one of the most vicious, despicable, detestable cases ever tried in California.  The  defendant was convicted of not only murdering a small child, but also severing her reproductive organs from her body to prevent sexual identification. Although the defendant alleged another person responsible for the crime, the jury found him guilty of murder and kidnapping.

The death is so gruesome that any jury would impose the death penalty, and the jurors  convicted the defendant on the charge of felony murder based on the underlying crime of kidnapping. The 9th Circuit panel did uphold the verdict of guilty, but held California law “special circumstances” instructions on the penalty phase require proof that the kidnapping was committed for an independent felonious purpose ,i.e. not merely “incidental to the murder.” The panel cited the California Supreme Court case in Peo. v. Green, 27 Cal.3d (1980). The defendant in Green planned to throw gasoline on  the victim’s house, igniting a fire, and shoot the victim when he ran to escape the flames.  Instead, the victim was trapped inside the house and burned to death.  The wife was seriously burned but survived to suffer years `of surgery.

The Green court held the prosecution had shown no independent motive of murder by arson other than committing the arson, and the “special circumstances” jury instruction in the penalty phase (invented in the case) should have been given. This is the kind of academic unreality apparently held by one of the newly appointed California Supreme Court justices who has never tried a case in his life .  The jury does not rely exclusively on jury instructions.  They consider  the depravity of the case, the defendant’s testimony-or lack thereof- the nature of the crime and the extent and kind of evidence submitted.  The 9th Circuit panel confirmed the jury  decisions on guilt and that alone should be enough without academic quibbling.

According to the panel, this inexplicable distinction written by the California  Supreme Court occurred in compliance with Supreme Court jurisprudence. In other words, the jury can find the defendant guilty regardless of whether the underlying felony was “incidental” or not.  But to support the death penalty, the crime had to be independent of the murder. Subsequent litigation by the state supreme court has modified that rule but the 9th Circuit prefers the Green rule.

Because the defendant was convicted in1982, AEDPA had not been enacted so the 9th Circuit  could review this case de novo.  You  would think that no matter what the evidentiary standard, the appropriate penalty in this case was death-not a reversal from a lawyerly parsed instruction no juror could understand.  And even if the “correct” jury instruction was not given, the error is so harmless that any juror would ignore the legal lingo or comprehend it. How can the prosecutor retry the penalty after 30 years, the delay attributable to the defendant petitioner on federal habeas corpus and an affirmed decision previously issued by the California Supreme Court?

Another case ready for cert.



Melendres v. Arpaio, 2015 WL 1654550 (C.A.9)

Federal courts, including the Supreme Court, but specifically the Arizona federal district court and the 9th Circuit, have done everything possible to preclude enforcement of immigration laws in Arizona. In addition, federal courts have taken over the state legislative and executive offices to manage immigration in the state.  The State legislature has been overruled and sweeping federal court injunctions control the executive.

The latest case, Melendres v. Arpaio illustrates the inability of Arizona to enforce border control judicially, and the federal Department  of Justice also insists on preemptive authority to enforce immigration law, a decision easily waived or delegated, to foreclose the state of Arizona enforcing the law.  Injunctions in civil cases ordinarily order one party to discontinue certain acts or conditions of another party, and the detriment to that party is substantial. But in the context of immigration, public agencies must submit to the policy decisions of a single judge. Here is an example of an injunction issued by a district court judge recited in the 9th Circuit opinion:

“[As a result of the evidence”], the district court permanently enjoined Defendants from “(1) detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization; (2) using race or Latino ancestry as a factor in deciding whether to stop any vehicle with a Latino occupant, or in deciding whether a vehicle occupant was in the United States without authorization; (3) detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law; (4) detaining, holding or arresting Latino occupants of a vehicle … for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present; and (5) detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.”

In addition the judge ordered the Sheriff’s Office to begin officer training in the Fourth Amendment, training in racial profiling (how do you do that?), and appointment of a Monitor with extensive authority to evaluate all programs.  At state expense.

That a federal court could run a sheriff’s office is an incredible display of judicially unauthorized conduct.  But this is not the first arrogant act.  The federal district court, with the agreement of the 9th Circuit, managed the Nogales School District for 30 years to make sure English was taught to Spanish speaking children illegally in this country.  Even the Supreme Court could not approve that-and did not.

The 9th Circuit is also running California prisons, ordering prisoners released for no reason other than because the prisons are crowded. And recently the 9th Circuit ordered a class action of 33,000 inmates who alleged deficient medical services in Nevada prisons despite the fact not all the prisoners needed medical service. Parsons v. Ryan, above This is not the first case the 9th Circuit has invoked solicitude for rapists, burglars, murderers, robbers and thieves.

N.B. Judge Lawrence Waddington has published his book on the 9th Circuit entitled “Disorder in the Court.”



Comstock v. Humphries, 2015 WL 2214647 (C.A.9)

Ninth Circuit judges have employed every verbal manipulation in the book on habeas corpus cases but this one is unbeatable.  First, the panel announces it is bound by AEDPA and deference to state courts on habeas corpus. Second,  recites all the appellate limitations imposed on the 9th Circuit by the Supreme Court. Third, the district court had denied the petition so review  on appeal of that decision was de novo.  The Nevada Supreme Court had  previously affirmed the conviction, but the Nevada Supreme Court had not made a finding of facts and conclusions of law on the underlying issue of the case.That failure voided all previous judicial decisions, and the panel could review de novo.

The underlying facts are not crucial to the issue itself, i.e., habeas corpus decisions by the 9th Circuit.  Comstock is a routine Brady case, i.e., an alleged failure of the prosecutor to disclose evidence favorable to the defense.  The trial judge denied a motion for a new trial on the Brady issue; The Nevada Supreme Court denied appellant’s state court appeal on the same issue; the district court affirmed the state court; on habeas, the 9th Circuit panel reviewed the record as though on appeal and reversed on the ground the Nevada Supreme Court had not made a finding of facts and conclusions of law.

This case is nothing more than an appeal from the district court in trial- not habeas corpus. AEDPA requires deference, not a finding of facts and conclusions of law-which happens to be the job of the trial judge in the appropriate case.  The Brady issue in the case is arguable, but a trial is not just a law review.  The jury may not believe the defendant or his witnesses no matter what the Brady issue.  The trial judge sees that, not the appellate court on a cold record.

City & County of San Francisco v. Sheehan, 2015 WL 2340839 (C.A.9) Another Reversal

The Supreme Court reverses the 9th Circuit again.  In addition, the justices criticize (and indirectly reverse) three other 9th Circuit previous decisions.

The director of a group home occupied by residents suffering from mental illness summoned officers to assist  him in moving resident Sheehan to another facility due to her threats. Upon arrival of police, the director opened the door to her room and the officers entered.  Sheehan demanded the officers get out, brandished a knife, threatened to kill them, and closed the door. The officers, concerned that others may be in the room, or Sheehan would hurt herself, or try to flee on the fire escape, decided to enter the room again. Uncertain of their options, the officers pushed open the door and Sheehan repeated her conduct, threatened them wielding a knife, and started toward one of the officers who pepper sprayed her in defense.

The spray proved ineffective and Sheehan approached the officer with knife in hand.  The officer fired two shot at her, but Sheehan did not fall.  The officer fired again.  At that point, other officers arrived and resolved the situation. Sheehan survived.

Sheehan sued the City & County and the officers under American Disabilities Act, 42 U.S. 12101 and under 42 U.S.C. 1983, the former on grounds the officers violated the accommodation of disabilities described by the Act and the latter statute under the Constitutional guise of the Fourth Amendment. The district court dismissed the case; the 9th Circuit reversed.

The City and the officers both asserted qualified immunity, and the 9th Circuit reversed by invoking non compliance with the Fourth Amendment. Here is the language of the Supreme Court in reversing:

“To begin, nothing in our cases suggests the constitutional rule applied by the Ninth Circuit. The Ninth Circuit focused on Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), but Graham holds only that the “ ‘objective reasonableness’ ” test applies to excessive-force claims under the Fourth Amendment. See id., at 388, 109 S.Ct. 1865. That is far too general a proposition to control this case. We have repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” al–Kidd, supra, at ––––, 131 S.Ct., at 2084 (citation omitted); cf. Lopez v. Smith, 574 U.S. ––––, ––––, 135 S.Ct. 1, 3–4, 190 L.Ed.2d 1 (2014) (per curiam ). Qualified immunity is no immunity at all if “clearly established” law can simply be defined as the right to be free from unreasonable searches and seizures.
Even a cursory glance at the facts of Graham confirms just how different that case is from this one. That case did not involve a dangerous, obviously unstable person making threats, much less was there a weapon involved. There is a world of difference between needlessly withholding sugar from an innocent person who is suffering from an insulin reaction, see Graham, supra, at 388–389, 109 S.Ct. 1865, and responding to the perilous situation Reynolds and Holder confronted. Graham is a nonstarter.
Moving beyond Graham, the Ninth Circuit also turned to two of its own cases. But even if ‘a controlling circuit precedent could constitute clearly established federal law in these circumstances,’ Carroll v. Carman, 574 U.S. ––––, ––––, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014) (per curiam ), it does not do so here.”
The Supreme Court continued by listing cases the 9th Circuit  had decided in its opinion reversing the district court and criticized them all as inapplicable.
Because of jurisdictional questions the Supreme Court did not address the officer’s liability under the ADA.  But the remand and Supreme Court opinion clearly address the error of the 9th Circuit in denying quaififed immunity to the officers regardless of statutory language.  The 9th Circuit, as the Supreme Court notes, has repeatedly been advised on application of Fourth Amendment jurisprudence and the difference in analysis under qualified immunity.
That any court would disallow immunity to the officers when threatened by an unstable mental patient armed with a weapon is incredulous.  The Supreme Court thought so too.

Riley v. McDaniel, 2015 WL 2262549 (9th Cir.)

The author of this three judge panel of the 9th Circuit who has never affirmed a death penalty case (or even tried one) added another unbelievable habeas corpus opinion of a murder committed in the presence of a third person who testified in a state court trial.  The evidence, overwhelming and hardly “factually innocent,” established the petitioner shot  the victim with a shotgun sitting a few feet away from him. The incredibly unanimous panel  is nothing  more than an appeal from state court records, defies Supreme Court precedent, and a habeas corpus decision in name only.

According to the panel, petitioner’s failure to conform to the mandatory requirement of AEDPA exhaustion of state remedies was unnecessary because the 9th Circuit had previously decided the Nevada procedural statute  had not been regularly applied.  Under that rationale, no state court had decided the merits, and the panel could decide de novo-without any Supreme Court precedent or application of AEDPA.

The murder statute in Nevada requires “willfulness, premeditation, and deliberation.” Although the state court judge instructed the jury on premeditation, he failed to include the definition of “deliberation” in jury instructions. The jurors found the petitioner guilty of robbery and murder, voted the death penalty, and the Nevada Supreme Court affirmed on appeal, holding the omission harmless.

The panel on habeas launched into a  “lawyerly parsing”  of words [as the Supreme Court said in a previously reversed 9th Circuit decision on jury instructions], and concluded despite the obvious  proof of guilt the jury might have considered the petitioner’s emotional and high state of emotion lacked deliberation before he shot the victim.  The district court agreed on the “deliberation” issue but also held the failure harmless.   How many jurors can distinguish between premeditation and deliberation, particularly in the fact pattern of this crime? This case confirms the verbal manipulation applied by this judge and others on the 9th Circuit.

The Riley case was decided without the benefit of Woods v. Donald, 133 S.Ct. 1372 (2015) arguably ending any further decisions by the 9th Circuit on habeas corpus. If Riley v. McDaniel is not reheard, the case is an absolute guarantee of reversal in the Supreme Court.  Again. But the author of Riley v. McDaniel has read Woods. This is what he said in a footnote . . . noting “counsel  was ‘egregiously deficient ‘ due in part to seriously inadequate public defense infrastructure in Clark County [Nevada] some quarter of a century ago.”  This sarcastic and irrelevant statement confirms that the author has read Woods and prepares for more absurd and unjust decisions. Hopefully, this is his last habeas corpus case.             Continue reading

Doe v. Ayers, 2015 WL 1427578 (C.A. 9)

Another case written by a 9th Circuit panel reversing jury imposition of the death  penalty phase of a state court trial. Unsurprisingly, the judge who wrote the 39 page opinion – including footnotes – has never affirmed a capital case and was allegedly “randomly” selected..  The judge, “randomly” selected in a disproportionate number of cases on death penalties, has been reversed by the Supreme Court more than any judge in the country. Nor has the second judge on the panel ever affirmed a death penalty case. If the case is not reheard en banc, the Supreme Court will hear it.  And reverse.

The court starts with the observation that the procedural history of the case began in 2005, ten years ago, with the Supreme Court in reversing the 9th Circuit and ordering remand.  Without exploring the habeas corpus arguments, apparently Doe still has another pending case in addition to the current case.

In a curious and probably unlawful act, the panel deleted captions naming the district court judge and the defendant -petitioner- himself.  This hypocrisy will also be challenged. There is no authority for this, or at least the court cites none.

The facts of the brutal murder are horrific, and the judge writes that all murders are in that category. But, he writes, in capital cases the crime must be “egregious.” to warrant the death penalty.  There is no citation for this disgusting and insensitive characterization of raping and murdering a handcuffed woman in this case.

The merits of this case and the penalty were confirmed  by the California Supreme Court and the federal court district judge, but the petitioner filed his petition before Congressional enactment of AEDPA enabling the 9th Circuit panel to evade the rules of current jurisprudence-in which the court has repeatedly been reversed by the Supreme Court .  As noted in the next post, the 9th Circuit is finished with granting habeas corpus in state cases filed after 1996-the year Congress enacted AEDPA.

The court panel concludes that the attorney who tried this case did so “ineffectively” but insufficiently to warrant reversal on the merits.  On the penalty phase the court writes endlessly on the lack of experience and the mistakes of appointed counsel.  Curiously, in a subsequent hearing this lawyer agreed he made mistakes.  Why did the trial court, monitoring the case, not sense these mistakes and inquire of counsel of the course he was taking?  In any event, this disclosure by the attorney almost suggests he made these mistakes on purpose to preserve an appeal of a guilty client.

Without reviewing the horrible, but not “egregious,” facts, any jury would have imposed. the death penalty regardless of any mistakes by counsel.  The evidence of guilt is overwhelming and the mitigating evidence is the usual defenses.

Note: To read a more sensible and less theoretical death penalty case, see Elmore v. Sinclair, 2015 WL 1447149.

Woods v. Donald, 135 S.Ct. 1372 (2015)

Woods v. Donald is a 6th Circuit case on certiorari, but  the Supreme Court has now indirectly prevented the 9th Circuit from circumventing state courts in habeas corpus cases.  The facts in the case are relatively unimportant; it is the Supreme Court language that applies to a challenge by petitioner of ineffective assistance of counsel. Under the familiar 28 U.S.C.2254  (AEDPA) statute a federal court can only order habeas corpus if a state court decision on the merits is “contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court …” The 9th Circuit has repeatedly evaded this statute and reversed state court decisions invoking a direct review procedure rather than a collateral one.
Here is the Supreme Court language in Woods: “AEDPA’s standard is intentionally‘ “difficult to meet,’ White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Metrish v. Lancaster, 133 S.Ct. 1781, 1786 (2013). We have explained that ‘clearly established Federal law’ for purposes of s. 2254 (d)(1) includes only the holdings, as opposed to the dicta, of this Court’s decisions.’ White, 134 S.Ct @ 1702 . And an ‘unreasonable application of’ those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.’ 13 4 S.Ct. @ 1792 (same). To satisfy this high bar, a habeas petitioner is required to ‘show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement, Harrington v. Richter, 131 S.Ct. 770 (2011). Adherence to these principles serves important interests of federalism and comity. AEDPA’s requirements reflect a presumption that state courts know and follow the law.’  Woodford v. Visciotti 123 S.Ct. 357 (2011). When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal, Harrington v. Viscotti, supra. This is especially true for claims of ineffective assistance of counsel, where AEDPA review must be ‘doubly deferential’  in order to afford ‘both the state court and the defense attorney the benefit of the doubt.’ Burt v. Titlow, 134 S.Ct. 10, 13 (2013)  (quoting Cullen v. Pinholster, 131 S.Ct.1388 (2011).”
The Court continues to expand these rules by instructing ederal courts to dentify a Supreme Court case relevant to the claimant’s challenge.  In cases alleging ineffective assistance of counsel, the ruling is doubly deferential (as in Woods v. Donald’s claim.)   The Court added additional language on according state courts comity and federalism, and issued a clear warning to the 9th Circuit that it discontinue its reversal of state court cases on habeas corpus.


9th Cir. Recent Cases in Supreme Court 2014-2015 Term

At  the end of the year 2014 we begin reviewing all 9th Circuit cases reversed by the Supreme Court during the 2015 calendar year. The end of the calendar year does not coincide with the Supreme Court term which began in October, 2014 and concludes in July, 2015. In January, 2015 the current term will continue. So, we include all the cases in 2014-2015 in the current term.

All the cases decided during the year from January 1, 2014  to January 1, 2015 cited here are in the Blog for further discussion.


Habeas Corpus: The Supreme Court gave the 9th Circuit another harsh lesson on habeas corpus in a 6th Circuit case.  (This Circuit is trying to match the 9th Circuit reversal record); Woods v. Donald, 2015 WL 1400852.  See the Blog for discussion.

Habeas Corpus: A week before the current term of the Supreme Court had even begun, the Justices reversed the 9th Circuit; Scialabba v. de De Osorio, 134 S.Ct. 2191 (2014). When the current term opened on October 6, 2014 the Court again reversed the 9th Circuit in a unanimous per curiam opinion. Lopez v. Smith, 135 S.Ct. 1 (2014).The overwhelming evidence in Lopez v. Smith cast no doubt he had killed his wife in their house. Police found Smith’s DNA evidence: on the body of the dead victim; on the lethal weapon; on jewelry removed from the house where the murder occurred concealed in the trunk of his car. A criminal evidence expert testified the ransacked house was a staged robbery. The jury rendered a guilty verdict of murder.

At the conclusion of the prosecution case, the prosecutor had obtained a trial court approved jury instruction defining the crime of aiding and abetting in addition to first degree murder instructions already submitted. Defense counsel objected, arguing he had no notice of the change in prosecution theory. All California appellate courts have rejected this argument, as did the trial court and Court of Appeal in this case, on grounds anyone who aids and abets is as guilty as the principle. The 9th Circuit panel on habeas review disagreed and overruled the California courts.

In Lopez v. Smith, and the cases cited above, the 9th Circuit has repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012)..

AEDPA also requires federal courts “deference” to state appellate courts in habeas proceedings. The 9th Circuit panel in Lopez cited only their own precedents, and overruled the conviction on grounds the state appellate court opinion “unreasonable.” The Supreme Court reversed, concluding the 9th Circuit had “time and again” misinterpreted the facts and Supreme Court law under AEDPA and ignored deference to state courts.

               Lopez v. Smith is a heavily cited per curiam opinion without footnotes, but the dissenting opinion in Deck v. Jenkins lists an embarrassing number of Supreme Court cases reversing the 9th Circuit for failing to comply with AEDPA. In one Supreme Court case a Justice singled out the 9th Circuit for repeated violations of AEDPA committed by panels’ misapplication of habeas corpus precedent. In addition, the 9th Circuit has ignored or evaded almost every state court death penalty case for the last decade on habeas corpus grounds despite California Supreme Court affirmation on the merits and the penalty.


Immigration: De Osorio v Mayorkas, 134 S.Ct. 2191 (2014).  The district court had originally upheld a BIA decision interpreting an immigration statute and was affirmed on appeal by the 9th Circuit panel.  Rehearing was granted en banc and reversed; 695 F.3d 1003  (9th Cir.) by the usual judges.  Cert. to the Supreme Court and the en banc decision reversed. In a tiny one sentence order the 9th Circuit on remand affirmed the district court.

Immigration: Aragon-Salazar v. Holder, 769 F3d 699 (9th Cir. 2014. Petitioner appealed the BIA decision not to allow him to file cancellation of removal because he lied subsequent to his application and ineligible under the relevant statute. The 2-1 majority held the statute ambiguous as to when it was timely. The dissent skewers this reasoning.(Oct. 29, 2014).

Immigration: Kerry v. Din, 718 F.3d 856 (9th Cir 2014). Petitioner was denied a visa based on security concerns.  The 2-1 majority decided the court had judicial review of this administrative decision issued by the Secretary of State.  Here is the dissent: “The majority opinion acknowledges the doctrine of consular [State Dept.] nonreviewability and the “highly constrained” nature of our judicial review of the denial of a visa, see Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008), but in practice it fails to accept that doctrine and act within that constraint. Instead, assuming that judicial review must be more robust, it imposes upon the Government an obligation to provide information about a visa denial that, by statute, the government is specifically not required to provide when it denies a visa based on concerns for national security or terrorism. I respectfully dissent.”

Petition for cert granted: 135 S.Ct. 44




Wilkerson v. Wheeler, 772 F.3d 834 (9th Cir. 2015)

Only in the 9th Circuit can a panel ignore the pleadings and invent a rule never sought  in the Complaint or argued at trial. Wilkerson, a prison inmate under life sentence for crimes not described by the panel, filed a 42 U.S.1983 case against state correction officers alleging claims of questionable constitutional dimension. He had previously filed an administrative complaint dismissed by state prison officials; his state habeas corpus petition was denied; he then filed his 1983 complaint in U.S. district court.  At trial, the jury denied his allegations. Wilkerson appealed to the 9th Circuit.

Prison Corrections officers testified at trial they informed Wilkerson to return to his cell after he had copied some of his documents.  He refused, and officers were compelled to physically restrain him in compliance with their order.  Under the Heck v. Humphrey case, 512 U.S. 477 (1944) an inmate cannot testify in a 1983 case if a jury decision would render an attack on his sentence or duration of imprisonment.  But, according to the 9th Circuit, Wilkerson had been sentenced for life and therefore the Heck case inapplicable.  In other words, an inmate sentenced for life can file a 1983 case without restrictions imposed by 1983 Supreme Court law.

The 9th Circuit panel recited the officer’s testimony that Wilkerson refused to obey their order to return  to his cell, and he kicked and twisted.  The district court had denied Wilkerson his testimony under the Heck doctrine, and, in effect, the officer’s testimony was uncontradicted.  The 9th Circuit panel said the Heck rule prevented Wilkerson from testifying to the facts, but he could allege legal error.  How you allege legal error without the facts is an interesting question.

So, the panel said the district court judge had not instructed the jury correctly and that  the error is a legal question, not a factual issue.  Had Wilkerson testified that he offered no physical resistance, said the panel, the jury  might have found the officers used excessive force. Therefore, the judge should have modified the jury instruction to say the conduct Wilkerson engaged in for 1983 purposes did not have to necessarily be physical (according to Wilkerson.). That is the legal error. Oh.

Not only is this academic hairsplitting absurd, this jury instruction was never submitted,  argued or briefed by Wilkerson. He objected to the Heck rule that he could not testify but made no request for the district court to explain that resistance may not necessarily be confined to physical evidence.

Here is a case of a life sentence imposed prisoner whose administrative complaint in prison against the correction officers was denied; his habeas corpus petition denied; his trial lost, has now added to the time it took to have a jury originally find him guilty (the panel does not describe the crimes he committed to warrant a life sentence.)  The 9th Circuit has reversed the district court in this 1983 case, and now the judge must conduct another 1983 trial with some kind of modified jury instruction.  A frivolous complaint matched to a frivolous decision. Congress enacted the Prison Reform Litigation Act (42 U.S.C. 1997) to prevent just this kind of judicial verbal manipulation.